Judge Allows AHF to Remain as Intervenor in ‘Vivid v Fielding’

Cambria: An appeal of the ruling is not being considered "at this time."

LOS ANGELES—In a ruling that appears to imbue the Supreme Court’s recent Prop 8 ruling in Hollingsworth v Perry with meanings it never had while disregarding meanings it clearly has, U.S. District Court Judge Dean D. Pregerson issued an order yesterday allowing the AIDS Healthcare Foundation to maintain its intervenor status in Vivid v Fielding, the lawsuit brought by Vivid Entertainment and Kayden Kross challenging the Measure B mandatory condom law.

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Writing in his 5-page order, Judge Pregerson recounts that on April 13 of this year he allowed AHF to intervene in the case, and cites AHF’s role as “the official proponents of Measure B” as his justification.

He then cites Local Rule 7-18 as the legal standard he will use to rule on the question before him: the plaintiff’s motion to reconsider his April decision in light of Hollingsworth’s finding that the Prop 8 intervenors did not have standing. Local Rule 7-18 basically states that there has to be a “material difference in fact or law” for reconsideration of a previous ruling to be considered appropriate.

In the legal analysis that follows, Judge Pregerson relies on an interpretation of Hollingsworthput forth by AHF in recent court filings to argue that the SCOTUS ruling was implicitly written to apply only to intervenors who appeal District Court rulings, and that “at the district court level, intervention by initiative proponents is proper when the government is enforcing the initiative but refuses to defend it, regardless of whether the interveners have standing independent of the government defendants.”

Try as one might, however, it's hard to square that interpretation with the following section from the Hollingsworthmajority opinion written by Chief Justice John Roberts.

Petitioners claim that the California Constitution and election laws give them a “‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process,” but that is only true during the process of enacting the law. Once Proposition 8 was approved, it became a duly enacted constitutional amendment. Petitioners have no role—special or otherwise—in its enforcement. They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every California citizen. No matter how deeply committed petitioners may be to upholding Proposition 8, that is not a particularized interest sufficient to create a case or controversy under Article III.

Indeed, it is almost impossible to read Justice Roberts’ ruling and believe that the Court ever meant to imply, as Judge Prederson claims, that even at the district level “intervention by initiative proponents is proper” when the government refuses to defend the initiative.

To the contrary, in the following section Roberts directly addresses the High Court’s requirements regarding standing by initiative proponents (like AHF), and makes no distinction between district courts and appeals courts. Even more to the point, the use by Roberts of the inclusive phrase “a federal court”in the sentence describing who may have standing indicates with linguistic certainty that he meant all federal courts.

The Court does not question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law. No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override this Court’s settled law to the contrary. Article III’s requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in the federal system of separated powers. States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.

But Roberts is not done yet. Perhaps anticipating an interpretation such as that advocated by Judge Pregerson, the Chief Justice is even more unambiguous on the matter of Hollingsworth’s reach when he writes, “Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, but Article III demands that an ‘actual controversy’ persist throughout all stages of litigation. That means that standing ‘must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.’ We therefore must decide whether petitioners had standing to appeal the District Court’s Order.” [Citations omitted.]

It’s hard to see how anyone can read that to mean anything but that Hollingsworth would apply to the lower court’s ruling were that matter before it, but Judge Pregerson comes to precisely the opposite conclusion by interpreting the court’s intent not by what it actually said, but by what he believes it has implied by way of its lack of action on a matter not before it.

Done with his main argument, the judge then briefly mentions an “ambiguous” Ninth Circuit precedent that “generally indicates that interveners are not required to demonstrate Article III standing independent of the defendants,” but again, Hollingsworth appears to address that issue in precise terms.

Almost finished, Judge Pregerson then fulfills his Local Rule 7-18 obligation by ruling, “Because Perry [i.e. Hollingsworth]only held that interveners must have independent standing to bring an appeal that the government defendants decline to, it did not undercut prior authority indicating that interveners do not need to establish independent standing at the district court level.”

Finally, Judge Pregerson argues that “denying intervention in this case would upend one of the key purposes of standing doctrine. One reason standing is required is to ‘sharpen[ ] the presentation of issues upon which the court so largely depends for illumination of difficult questions.’ Even without Interveners, there would still be standing to resolve this case because the County is enforcing Measure B. Because the Defendants refuse to defend Measure B’s constitutionality, Interveners are needed to sharpen the issues this Court will be required to answer.” [Citations omitted.]

AVN reached plaintiffs' attorney Paul Cambria for comment and asked him if he was considering appealing the ruling. "Not at this time," he replied.